Monday, June 24, 2013

The right of publicity is the right of individuals to
control the use of their name and likeness in a commercial setting. You cannot
place an image of another person on your brand of pickles without their
permission. Celebrities can earn large fees from this right by endors­ing
products. Some celebrities earn more money from licensing their name or image than they can earn from their career. According
to Forbes magazine, Tiger Woods made in excess of “$100 million in annual
off-the-course earnings” in 2009, compared to $21 million on the golf course.

The right of publicity is similar to the appropriation form
of invasion of privacy. The principal difference is that the right of publicity
seeks to ensure that a person is compensated for the commercial value of his
name or likeness, while the right of privacy seeks to remedy any hurt feelings
or embarrassment that a person may suffer from such publicity.

Celebrities may have difficulty making an invasion of their
privacy claim because they necessarily sacrifice some solitude and privacy by
virtue of their fame. How can a celebrity claim that the unauthorized use of
his likeness on a product embarrassed and humiliated him while at the same time
that person willingly appears in television commercials? By thrusting
themselves into the public eye, celebrities waive much of their right of
privacy. On the other hand, celebrities have an especially valuable property
right in their names and likenesses. Most courts have held that the Right of
Publicity extends to everyone, not just celebrities. But clearly the right is
most valuable for celebrities because they can license their rights for large
sums.

Under either a publicity or privacy theory, subjects can
recover for some unauthorized uses of their names and likenesses. A prob­lem
arises, however, when one person's publicity/privacy rights come in conflict
with another person's rights under the First Amendment. Suppose a newspaper
publisher wants to place a picture of Cher on the front page of its paper
because she has done something newsworthy. Is her permission needed? The answer
is no.

Although Cher's name and likeness is portrayed in the
newspaper, this "product" is also a form of "protected
expression." Products such as books, movies and plays are modes of
expression protected under the United States constitution. The First Amendment allows journalists to
write about others without their consent. Otherwise, subjects could prevent any
critical reporting of their activities. When one person's right of publicity
conflicts with another person's rights of free speech under the First Amendment,
the latter often but not always prevails.

However, when the likeness of Elvis Presley is used on an ashtray,
there is no expression deserving protection. The seller of this product is not
making a statement or expressing an opinion or view about Elvis. He is simply
trying to make money by exploiting the name and likeness of Elvis. Since there
are no competing First Amendment concerns, the right of publicity in this
instance might well preclude the unauthorized use of Elvis’s likeness. In
summary, the law draws a distinc­tion between products that contain protected
expression and those that do not.

The right of publicity is derived from state law and these
laws vary significantly. In some states
the legislature has enacted statutes that specifically address the scope and
duration of the right. Other states rely on the common law, also known the law
of precedent that arises from case decisions made by judges.

Courts have struggled with the issue of whether the right of
publicity descends to a person's heirs. In other words, when a celebrity dies,
does his estate inherit his right of publicity? Can the estate continue to
control the use of the celebrity's name or likeness, or can anyone use it
without permission?

Some courts have held that the right of publicity is a
personal right that does not descend. These courts consider this right similar
to the right of privacy and the right to protect one's reputation (defamation).
When a person dies, heirs don't inherit these rights. Suppose, for instance,
that you were a direct descendent of Abraham Lincoln. An unscrupulous writer
publishes a biography falsely claiming that Abe Lincoln was a child molester.
You couldn't sue for defamation or invasion of privacy because you did not
inherit these rights from your ancestor. Perhaps this is why many scandalous
biographies are not published until the subject dies.

In California prior to 1984, courts held that the right of
publicity was personal and was not inherited by one’s heirs. In 1984, however, the California legislature
changed the law. Civil Code Section 3344.1 provides that the right of publicity
descends for pro­ducts, merchandise and goods, but does not descend for books,
plays, television and movies. The statute was recently amended to extend
protection so that heirs can enforce this right for up to 70 years after the
death of a celebrity. In California, a
form available on the Secretary of State’s website is required to register a
claim as successor-in-interest for the right of publicity. Code Section 3344.1 requires any person
claiming to be successor-in-interest to the rights of a deceased personality
register their claim with the Secretary of State's Office. Other
states have their own registration requirements.

A similar statute, California Civil Code Section 3344
prohibits the unauthorized use of the name and likeness of living individuals.
Both statutes provide exceptions for uses in the news and public affairs arenas
in an attempt to balance First Amendment rights against rights of publicity and
privacy.

An interesting case is Hicks v. Casablanca Records, which
concerned a movie made by Casablanca Records called "Agatha." The
movie was about the well-known mystery writer Agatha Christie. The story was a
fictionalized account of the 11-day disappearance of Christie in 1926. The film
portrayed her as an emotionally unstable woman engaged in a sinister plot to
murder her husband's mistress. An heir to Christie's estate brought suit to
enjoin Casablanca from distributing the movie, alleging infringement of Agatha
Christie's right of publicity.

The Christie estate lost the suit. The court found that
Casablanca's First Amendment rights outweighed the estate's right to control
the name and likeness of Christie. Because of this case and other similar
rulings, we can conclude that a person’s right of publicity does not prevent
others from including a person’s name, features or biography in a book, motion
picture, news story.

However, the First Amendment rights of journalists and
filmmakers don’t always prevail. The United States Supreme Court weighed the
Right of Publicity against first amendment rights in the case of Zacchini v.
Scripps-Howard Broadcasting. Zacchini also known as the “human
cannonball,” was shot from cannon into a net 200 feet away at a county
fair. At one performance, a local news
reporter videotaped his entire act and broadcast it as part of the local news
without his consent. He objected and filed suit. The court held in his favor explaining that
the value of his act depended on the public’s desire to witness the event, so
televising it detracted from the demand of people willing to pay to see his
act.

The Court recognized Zacchini’s Right of Publicity and rejected
the news broadcaster’s First and Fourteenth Amendment defenses. In so doing,
the Court noted that the decision was not merely to ensure compensation for the
performer; rather, it was to provide “an economic incentive for him to make the
investment required to produce a performance of interest to the public.” So it
cannot be said that the First Amendment rights of journalists are always
paramount to subjects right of publicity.

UNFAIR COMPETITION

The law of unfair competition prevents a person, for
instance, from establishing a movie studio and calling it "Paramount
Pictures" if he/she is not affiliated with the well-known company. A
person would also be barred from displaying the Paramount logo or using any
other mark that might mislead or confuse consumers by leading them to believe
that films are genuine Paramount movies when they are not.

The names of persons and businesses may become associated in
the public mind with a supplier of products or services. The name can thus
acquire a secondary meaning, and the supplier can acquire trademark rights even
if he does not register the name as a trademark. In Dallas Cowboys
Cheerleaders, Inc. v. Pussycat Cinema, Ltd., the defendant exhibited a
pornographic movie, "Debbie Does Dallas," which portrayed a
"Texas Cowgirl" engaged in sex acts. The character wears a uniform
strikingly similar to that worn by the Dallas Cowboys Cheerleaders. Ads for the
movie showed the character in the uniform and included such captions as
"Starring Ex-Dallas Cowgirl Cheerleader Bambi Woods."

The Dallas Cowboy Cheerleaders brought suit alleging that
they had a trademark in the particular combination of colors and the design of
their uniforms. The court agreed and issued an injunc­tion against further
distribution of the film. Filmmakers should take note that if they portray
people or products in a way that is likely to confuse the public as to the
origin of a product, they may be liable for unfair competition.

Entertainment Law Resources

Translate

About Me

A veteran entertainment lawyer, arbitrator, expert witness and author, Mark Litwak has provided legal services or acted as a producer rep on more than 100 feature films. He is the author of 6 books including: Reel Power, Dealmaking in the Film and Television Industry (winner of the 1995 Kraszna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business: Financing and Distributing Independent Film. He is also the author of the popular CD-ROM Movie Magic Contracts.
As a law professor, he currently teaches at the U.S.C. School of Law, and has previously taught at the Univ. of Puget Sound and Loyola Law Schools. He has been on the faculty at UCLA for 24 years. He has lectured for the American, California and Texas bar associations. A frequent speaker, he has lectured at many universities including Harvard, the American Film Institute, Columbia University and NYU. He has also presented movie industry seminars in England, Australia, South Africa and Canada.
Mark Litwak is AV®
Peer Review Rated by Martindale-Hubble and has been named a Superlawyer multiple times by the publishers of Law and Politics Magazine.